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August 12, 2005.

JOSEPH T. SMITH, Superintendent, Shawangunk Correctional Facility, Respondent.

The opinion of the court was delivered by: DENISE COTE, District Judge


On February 12, 2004, pro se petitioner Anthony Isaacs ("Isaacs") filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Isaacs seeks an order to vacate his 1985 conviction following trial of murder in the second degree, attempted murder in the second degree and criminal possession of a weapon in the second degree. In his petition, Isaacs claims that he is being held unlawfully on the following grounds: (1) the lineup in which he was identified by the other victim of the shooting; (2) his trial counsel rendered ineffective assistance to him; (3) the prosecutor solicited and used testimony from an eyewitness known to be false; and (4) the denial of his motion pursuant to N.Y. Crim. Proc. L. § 440.10 was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.

  Respondent has moved to dismiss the petition as time-barred. Isaacs argues that he is entitled to an equitable tolling of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") statute of limitations because he is actually innocent of the crimes for which he was convicted and has submitted affidavits from various parties which he claims constitute new reliable evidence in support of his actual innocence. The matter was referred to Magistrate Judge Henry Pitman for a Report and Recommendation (the "Report"). The Report recommends that the petition be dismissed as untimely under AEDPA. For the following reasons, the Report is adopted in part, the motion to dismiss is granted in part, and the matter is referred to Magistrate Judge Pitman for further findings on Isaacs' actual innocence argument.


  In January 1985, Isaacs was tried by jury for second degree murder, second degree attempted murder, and second degree criminal possession of a weapon. At trial, testimony established the following facts. On the evening of December 9, 1983, Mario Chloros ("Chloros") and Nasser Judeh ("Judeh") drove from Clifton, New Jersey to Manhattan to buy "angel dust." Their car got a flat tire and the men pulled over at 129th Street in Manhattan. As the men changed the tire, Isaacs approached and, claiming that he was a police officer, put a revolver to Judeh's head and threatened to "drop" him where he stood. After pushing Judeh and Chloros against a car, Isaacs shot Judeh in the leg. Judeh began to run away and petitioner fired three more shots at him. Isaacs then fired a shot into Chloros' head, killing him. An eyewitness, Maurice Lee ("Lee"), who had known Isaacs for fifteen years, was at a friend's apartment on the fifth floor of 54 East 129th Street (the "Building") when he heard what sounded like two gunshots. Lee went to a window and saw Isaacs standing with a gun in his hand over the dead Chloros. Three or four days after the murder, Lee contacted the "Crime Stoppers" hotline and reported what he had seen to a detective and was subsequently interviewed by the detective assigned to the case. After further investigation, the detective conducted a lineup with Isaacs and five "fillers." Judeh viewed the lineup and identified Isaacs as the man who shot him. At trial, Judeh again identified Isaacs as the man who shot him. Isaacs was convicted on all counts on January 10, 1985.

  The remaining facts are set forth in the Report and summarized here. Isaacs was sentenced to concurrent indeterminate prison terms of twenty-five years to life on the murder count, eight and one-third years to twenty-five years on the attempted murder count and five to fifteen years on the weapons count. The Appellate Division of the Supreme Court, First Department, summarily affirmed petitioner's conviction on May 19, 1987. The New York Court of Appeals denied Isaacs leave to appeal on June 14, 1988.

  Isaacs filed an application for a writ of error coram nobis in 1992 alleging ineffective assistance of appellate counsel; the Appellate Division, First Department denied the application on March 4, 1993. People v. Isaacs, 595 N.Y.S.2d 600 (1st Dep't 1993). In October or November 2001, Isaacs filed a motion to vacate his conviction pursuant to N.Y. Crim. Proc. L. § 440.10. That motion was denied on May 29, 2002.

  Isaacs' pro se federal habeas corpus petition was received by the district court's Pro Se Office on February 19, 2004. Chief Judge Michael B. Mukasey, to whom the matter was originally assigned, issued an Order on May 4 explaining the one-year limitations period applicable to federal habeas corpus petitions brought by state prisoners and directing Isaacs to explain why his petition was not time-barred. Isaacs submitted an affirmation in response to Judge Mukasey's Order that alleged he had obtained newly discovered evidence in the form of a March 17, 1999 affidavit of Purvis Lucas. After the matter was reassigned to this Court, it was referred to Magistrate Judge Pitman in order to determine whether this newly discovered evidence was necessary to form the factual predicate of Isaacs' claim, whether this information could not have been discovered through the exercise of due diligence, and whether Isaacs' claim was nonetheless time-barred. The Report, to which Isaacs submitted objections after requesting an extension of time, recommends that respondent's motion to dismiss the petition as time-barred be granted.


  In reviewing the Report, a reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The court shall make a de novo determination of those portions of the Report to which objection is made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). "A district court may adopt those portions of the Report to which no objections have been made and which are not facially erroneous." Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 170 (S.D.N.Y. 2003) (citation omitted).

  Under AEDPA, the filing of a habeas corpus petition is governed by a one year statute of limitations. 28 U.S.C. § 2244(d)(1). Isaacs' judgment of conviction became final on September 12, 1988, at the conclusion of the ninety days during which he could have sought certiorari in the United States Supreme Court. See Valverde v. Stinson, 224 F.3d 129, 132 (2d Cir. 2000). Since Issacs' statute of limitations period expired before AEDPA became law, his one-year statute of limitations period began running on April 24, 1996, the date AEDPA was enacted. Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).

  In light of the foregoing, the Report correctly concludes that this petition, which is deemed filed on February 12, 2003,*fn1 is untimely. Isaacs had until April 24, 1997 to file the instant petition. Id. The post-conviction motion he filed in late 2001 in state court under N.Y. Crim. Proc. L. § 440.10 was submitted after his one year statute of limitations period expired, and therefore cannot be used to toll his statute of limitations. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam) (holding that "proper calculation of Section 2244(d)(2)'s tolling provision excludes time during which properly filed state relief applications are pending but does not reset the date from which the one-year statute of limitations begins to run"). Likewise, the affidavits on which Isaacs relies do not toll his statute of limitations, because they are either too old,*fn2 or do not form the factual predicate for any of Isaacs' habeas claims.*fn3 See 28 U.S.C. § 2244(d)(1)(D) (Under AEDPA, the one-year limitations period for "newly discovered" evidence runs from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence."). Isaacs does not object to this portion of the Report's analysis. As it is not facially erroneous, this portion of the Report is adopted.

  Equitable Tolling

  AEDPA's one-year period of limitations governing habeas corpus petitions may be equitably tolled in "extraordinary" or "exceptional" circumstances. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable tolling allows courts to extend the statute of limitations beyond the time of expiration as necessary to avoid inequitable circumstances." Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996). The party seeking equitable tolling must have acted with "reasonable diligence" throughout the period he seeks to toll. Id. There are limited circumstances which may equitably toll Section 2244(d)(1)'s limitation period. The Second Circuit has identified only two such circumstances: (1) where "an attorney's conduct is so outrageous and incompetent that it is truly ...

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